Case: 09-51020 Document: 00511205716 Page: 1 Date Filed: 08/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 17, 2010
No. 09-51020
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KUITLAHUA GARCIA-HERRERA, also known as Jesus Garcia-Herrera,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-1576-1
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Kuitlahua Garcia-Herrera appeals the 46-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation.
Garcia-Herrera contends that the within-guidelines sentence was greater than
necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and was
therefore substantively unreasonable. He specifically argues U.S.S.G. § 2L1.2
was established in a problematic manner and effectively double-counts his
criminal history. He also contends that his illegal reentry offense merely
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-51020 Document: 00511205716 Page: 2 Date Filed: 08/17/2010
No. 09-51020
constituted international trespass and that the guidelines range failed to reflect
his personal history and characteristics, including his benign motive for
reentering the United States. Garcia-Herrera further asserts that his
sentencing range was unreasonable because the district court did not consider
the unwarranted sentencing disparity between defendants sentenced in the
Western District of Texas, which does not have a fast-track program, and
defendants sentenced in districts that do have such a program
This court reviews the sentence for reasonableness, under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Where, as in
this case, the district court imposes a sentence within a properly calculated
guidelines range, the sentence is entitled to a rebuttable presumption of
reasonableness. See United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
Garcia-Herrera’s contention that § 2L1.2 is not supported by empirical
data and effectively double counts a defendant’s criminal history has been
rejected by this court. See United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir.), cert. denied, 130 S. Ct. 378 (2009). This court also has determined that the
“international trespass” argument raised by Garcia-Herrera does not justify
disturbing an otherwise presumptively reasonable sentence. See United States
v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Furthermore, as Garcia-
Herrera concedes, we have held that the disparity between districts with
fast-track programs and districts without them is not unwarranted. See United
States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008).
The district court made an individualized sentencing decision based on the
facts of the case in light of the factors set out in § 3553(a). See Gall, 552 U.S. at
49-50. The district court’s conclusion that a within-guidelines sentence is
appropriate is entitled to deference, and we presume that it is reasonable. Id.
at 51-52; Newson, 515 F.3d at 379. We see no reason to disturb the district
court’s discretionary decision to impose a sentence within the guidelines range.
AFFIRMED.
2